Chief Justice Rehnquist: We'll hear argument next in Number 91-1231, United States v. Alvin J. Dixon.

Mr. Bryson, you may proceed whenever you're ready.

Spectators are admonished, the Court remains in session.

There's to be no talking in the courtroom.

Mr. Bryson: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the double jeopardy clause bars successive prosecutions for contempt of court and substantive criminal offenses which are based on the same underlying conduct.

Our position is that the double jeopardy clause does not bar such successive prosecutions because crimes such as assault with intent to kill or drug trafficking are not the same offense as contempt of court.

Now, this case comes to the Court on certiorari to the District of Columbia Court of Appeals.

The facts of the case briefly are as follows.

Respondents were both proceeded against under contempt of court proceedings for violating court orders that prohibited them from engaging in certain criminal acts.

Respondent Dixon was barred by an order that was part of a pretrial release condition that provided that he should not commit any crimes, and Respondent Foster was found to have violated a civil protection order which provided that he must not assault, molest, or threaten his wife.

After they were both found in contempt for violating those orders, they were prosecuted criminally for, in Foster's case, assault with intent to kill, and other assaults, and in Dixon's case for the drug trafficking offense that formed the basis for his contempt proceeding.

Unknown Speaker: Now, would the prosecutor in those subsequent criminal proceedings prove anything that wasn't already proved at the contempt hearings?

Mr. Bryson: In these particular cases, no, the prosecutor would not prove any additional facts.

The conduct is the same.

Unknown Speaker: So literally it falls within at least the language of Grady v. Corbin.

Mr. Bryson: I think literally it probably does fall within the language of the formulation that the Court adopted in Grady.

Now, I hasten to add... this is a major part of our submission here... that that formulation the Court has already said in Felix was unduly broad and the Court noted in Felix that that formulation should not be followed to the limits of its language.

Unknown Speaker: Do you think that this Court in Menna and in Colombo at least indicated that it thought perhaps double jeopardy applied in contempt situations?

Mr. Bryson: No, Your Honor, and let me move directly to Menna and Colombo, because the Respondents discuss Menna and Colombo in some detail--

Unknown Speaker: Yes.

Mr. Bryson: --And I think they are easily distinguishable.

Both of those cases involved a New York... a sort of double header New York contempt statute.

There was... and if I can go into the details of those statutes, it's important.

One of them was section 750 of the judiciary law of New York, which was contempt, and provided that a court could hold somebody in contempt for a variety of acts, including refusal to comply with an order to testify.

There was another provision of New York law, section 600 of the penal law that was in effect in those days, which had almost exactly the same language, also entitled contempt, and provided that courts could penalize people for various things, including failure to testify in response to a direct order of the court.

To the extent that there's any suggestion... and the Court in this case did not... in... excuse me, in Colombo and Menna did not reach the underlying double jeopardy questions, but to the extent that there's any suggestion that there was merit to the underlying double jeopardy claims, it was simply saying that you can't prosecute somebody for contempt and then come back and say well, we're going to prosecute you for contempt again, when the two contempt proceedings have exactly the same elements. That case did not at all involve the situation that we have here, where we have a contempt proceeding which has elements A and B, and we have criminal acts which are not part of contempt which have elements D, E, and F.

The elements simply do not overlap in this setting and that, in our view, makes all the difference.

Now--

Unknown Speaker: Mr. Bryson, if I understand what you're saying, the premise of what you're saying is this, that criminal contempt does not have as its element, or as an element, the commission of either one of the two crimes which these respective parties committed.

Mr. Bryson: --That's correct.

Unknown Speaker: But it seems to me that that's really not the point.

Isn't the point not whether the generic offense, if you will, of criminal contempt has elements of other crimes, but whether the court order in this case has as its... whether violation of the court order in this case required proof of a crime, and in fact the court order in this case did forbid a crime and its violation required the proof, so why isn't this like Harris v. United States?

Mr. Bryson: Your Honor, because we don't think that the offense in the sense that that term is used in the double jeopardy clause is a violation of this particular court order.

The offense is contempt of court.

Now, let me give you an analogy--

Unknown Speaker: Yes, but it's equally true that there is no offense of contempt of court unless there is a court order and the offense is confined to the elements of that order, isn't that true?

Mr. Bryson: --Well, the Government certainly, or the court, if the court is proceeding in the contempt proceeding, has to prove that in fact that court order was violated, but it is no different, Your Honor--

Unknown Speaker: Well, it does, but may I just ask this... and I realize I keep interrupting you.

I'll stop at some point--

Mr. Bryson: --It's all right.

Unknown Speaker: --I promise you.

There is one essential respect in which the offense of contempt of court is different... criminal contempt of court is different from the normal crime, and that is, it has no specific elements.

No one can be charged generically with contempt of court.

One can only be charged with contempt for violating a specific order, and therefore it seems to me that any contempt analysis has got to include the specific order that was violated, and if that includes the elements of a crime, i.e. because it forbids the commission of any crime, that is the datum that you look to to decide whether you're talking about a Harris situation.

Suppose the crime in question is failure to follow a lawful order of a police officer.

That would not incorporate, in effect, all possible human activity that could be subject to a police officer's order as being elements of that crime.

The crime is failing to follow an order of a police officer, and if the order of a police officer is don't shoot that man, it doesn't make murder a lesser included offense, in effect, of the offense of failing to follow a lawful order of a police officer.

It's the same situation here.

Unknown Speaker: Well, it seems to me the trouble is there that the... at least as generally understood, the offense of failing to follow the order of an officer refers to orders for the commission or the prohibition of discretionary acts, not the incorporation by police officers of the criminal law... of specific provisions of the criminal law, so I don't think that analogy gets you anywhere.

Do you agree with me that there is at least an essential difference between the offense of criminal contempt and the offense, let's say, of burglary, in the sense that there are no specific elements of the offense of criminal contempt?

You cannot charge a criminal contempt without something more, i.e., a court order.

Do you agree with that?

Mr. Bryson: Well, I wouldn't put it that way.

No, I don't agree with that, Justice Souter.

The offense of criminal contempt does have elements which is violation of a court order.

Now, the--

Unknown Speaker: But you've got to have a court order.

Mr. Bryson: --Well, that's right, but in a false statement offense you have to have a false statement.

The offense is making a false statement, let's say within the jurisdiction of a Federal agency.

The Government has to actually prove what the statement was and then show that it was false.

That's no different, I think--

Unknown Speaker: But what it's proving in the criminal contempt case is, if you will, the analog of the content of the law, whereas in your example of the false statement, what it is proving is the act which happened also to be a violation of the law.

Mr. Bryson: --Well, Your Honor, I think it is... when you go... when you look at the elements of the offense, which is what's critical here, the fact that there is conduct, and really the conduct here is the violation of the particular order, it's... the facts of the case are... excuse me... are the order of the Court and the fact of the violation of that particular order, that doesn't count in the way Blockburger looks at the separate elements of an offense--

Unknown Speaker: Well, isn't that the--

Mr. Bryson: --As an element of a crime.

Unknown Speaker: --Isn't that the issue in this case--

Mr. Bryson: Well--

Unknown Speaker: --Whether it counts or not?

Mr. Bryson: --Well, Your Honor, I think it's clear that when you talk about the elements of contempt you're not talking about the details of the particular order and the particular violation of the order that's at issue in the particular case, because otherwise you really are looking at conduct.

Unknown Speaker: Mr.--

Mr. Bryson: You've adopted a same conduct test--

Unknown Speaker: --Mr. Bryson, so supposing someone, a spectator during a jury trial in a trial court just gets up and starts yelling, he can be held in contempt, can't he, without showing that he violated any particular order of the court?

Mr. Bryson: --He could, Your Honor, yes, that's right.

Now, I think in response to Justice Souter's question, Justice Souter is limiting the question, as I understand it, to cases in which brands of contempt that involve the violation of an order... in other words, contempts emerging from injunctions or other orders--

Unknown Speaker: No, but you're not claiming that if there had not been an order here saying don't commit a crime, that he could have been held in contempt... criminal contempt of court if he had committed--

Mr. Bryson: --No, we're not claiming that--

Unknown Speaker: --Okay.

Mr. Bryson: --That's right.

Unknown Speaker: May I just ask you to carry your response to Justice Souter one step further?

Why is this different from the felony murder case, then?

Mr. Bryson: Oh, I think it's very different, because in felony murder, Your Honor, you have an aggravated form of a lesser offense in which the aggravating statute incorporates by specific reference all the elements of the lesser--

Unknown Speaker: Just like the contempt, which incorporates all the different kinds of criminal conduct that could be prohibited.

Mr. Bryson: --Well, I think it's... no, Your Honor, I don't think so.

Contempt is--

Unknown Speaker: Well, what's the difference.

That's what I--

Mr. Bryson: --The difference is that in Harris v. Oklahoma sort of situation, where the statute says anybody who commits, let's say, burglary or robbery and uses a firearm is subject to an aggravated penalty.

That is in the nature of a lesser included offense with a greater form, the aggravated form--

Unknown Speaker: --No, I understand, but supposing the felony murder that says that the crime can be committed if you kill someone in the course of rape, robbery, burglary--

Mr. Bryson: --That's right.

Unknown Speaker: --Ten different felonies--

Mr. Bryson: Right.

Unknown Speaker: --Why is that different than contempt, that would be naming one of several alternative violations of law to carry it out--

Mr. Bryson: Well, if the statute--

Unknown Speaker: --That's under... just in a Blockburger analysis.

Mr. Bryson: --If you had a contempt statute that said anybody who commits the following five felonies--

Unknown Speaker: Any--

Mr. Bryson: --And does so in violation of a court order, then I think you would have a close analogy to Harris, but that's not the way the contempt statute in this case and contempt statutes--

Unknown Speaker: --This is--

Mr. Bryson: --Typically read.

They do not provide... they do not incorporate the specific elements of the underlying felonies, or the underlying crimes.

Unknown Speaker: --No, but when you have court orders that do, why don't they meet the Blockburger standard everybody talks about here?

It seems to me Blockburger is... the same suggestion I guess Justice Souter was making.

Mr. Bryson: Well, it is simply the difference, Your Honor, between an offense and conduct that may constitute an offense as we see it.

In other words, the conduct in the case of contempt is the violation of the particular court order that's been entered in--

Unknown Speaker: And also a violation of the statute--

Mr. Bryson: --Well, but the legislature did not--

Unknown Speaker: --Which is the same in the felony murder.

It's the... it's a killing, and it's also committing one of alternative offenses.

It simply says any court order, whatever it is, whether it's a crime, whatever it is, if you violate a court order you've committed a crime.

To say that that makes a lesser included offense of everything that a person could do that could possibly be subject to a court order, it seems to me is to--

Unknown Speaker: --And also would be an independent violation of law.

Mr. Bryson: --Twist the notion of lesser included offenses.

Unknown Speaker: And also be an independent violation of law.

Mr. Bryson: That's right, but that is to carry the notion of lesser included offenses, Your Honor, we think to the point that it no longer has any meaning, in the sense that this Court has used it in Grady and Harris.

Unknown Speaker: Mr. Bryson, what could the prosecutor have done here when receiving knowledge of what, for example, Mr. Dixon had done?

Could Dixon have been detained and jailed pending the criminal proceedings?

Mr. Bryson: Yes.

Yes.

Your Honor, there were several possibilities.

First, Dixon--

Unknown Speaker: Because there is a concern here.

I mean, these cases can involve people who feel that their life and safety is threatened and they need some protection.

Mr. Bryson: --Absolutely.

The first--

Unknown Speaker: Now, what could the prosecutor have done?

Mr. Bryson: --Well, the two cases present different options for the prosecutor.

In Dixon, in a sense the prosecutor has more options because the prosecutor is more directly in control of the situation.

In this case, the prosecutor in Dixon went to the court and said, we would like a modification of the terms of the bail release, and suggesting an increase in the bond.

The court said no, I think this is serious enough that it is deserving of contempt proceeding.

The court could also have simply revoked the release of Dixon on the murder charge which he was--

Unknown Speaker: So the court deprived the prosecutor, possibly, of the option of going ahead with the criminal charges if double jeopardy attaches.

Mr. Bryson: --That is the problem in this setting, is that the court is in a position that it can deprive the prosecutor of proceeding with the criminal case.

Now, that problem is even more serious in the Foster-type setting, because you've got two very important interests at stake.

On the one hand, you have the interest of the woman, typically, in... who has the civil protection order and who's being assaulted by her husband.

She wants immediate relief and is entitled to immediate relief... going into court, asking for a contempt adjudication which may be the only way that she can get the assaultive behavior to stop.

Everything else has been tried.

They've gotten a civil protection order.

It doesn't work.

She needs quick, effective relief, so she goes in for contempt, and that's a very sympathetic situation in which to grant contempt.

But it may well be that the prosecutor is not in a position at that point to go forward with criminal charges, or it may well be that the prosecutor doesn't even have notice that she's proceeding on the contempt angle and therefore if Dixon and Foster is correct... the decision below in Dixon and Foster is correct, the prosecutor will be foreclosed from bringing very serious criminal charges in a situation in which the defendant is subject to no more than 6 months imprisonment under the family court contempt proceedings that are at issue here.

Now, of course, there's another general contempt statute in the District of Columbia which was not invoked here which provides for longer contempt incarceration, but 6 months is the limit that someone in Foster's position was exposed to, even though the conduct he engaged in was much more serious than a 6-month sentence would suggest.

Unknown Speaker: Mr. Bryson, let me just be sure about... of course, your theory applies even if they've taken... asked for a contempt punishment of a couple of years.

Your theory would still be the same.

Mr. Bryson: That's correct.

Unknown Speaker: And your theory would also be the same if in the first proceeding the defendant were acquitted.

Mr. Bryson: Yes, Your Honor, that's right.

Now, that... let me turn to why it is that we think--

Unknown Speaker: Suppose he were acquitted on the basis of identity.

It was... the assault... in the Foste case the assault was committed by someone else, he still could be tried on the assault charge if he--

Mr. Bryson: --Well, that would depend on the resolution of the collateral estoppel claim.

Of course, he would, as he did below, claim with respect to some of the--

Mr. Bryson: Now, we... that isn't before the Court and how that is resolved is... of course depends in part on how the Court addresses this question, but that would be an argument that he no doubt would make in that setting.

But there's an even greater danger, let me point out, of an acquittal in the following setting.

Suppose what you've got is a Foster-type situation in which the contempt proceeds first, and the basis for the contempt is an attempted murder by Foster against his wife, and the judge acquits Foster not on the ground that the murder didn't take place or that Foster didn't commit the murder, but on the ground that Foster didn't have notice of the order.

In that situation, if this... if the lower court decision is right in this case, and these are the same offense, then we would not be able to proceed with the attempted murder charge in the criminal case because the offense would already have been prosecuted, even though--

Unknown Speaker: Even if the prosecutor never knew about the contempt proceedings.

Mr. Bryson: --Even if the prosecutor never knew about the contempts.

That is the ultimate horrible case, and that case doesn't come up very often and it's not presented here, but I think that is the implication.

Unknown Speaker: Mr. Bryson, I don't understand why you would be estopped in that case, because in the instance in which you've just described there would indeed have been an element not peculiar to the criminal statute itself, i.e., notice of the court order, and therefore the acquittal of the criminal contempt would not necessarily imply a finding inconsistent with any of the elements of the criminal offense alone.

No, Your Honor, I'm suggesting a much broader problem, which is once you say that it is the same offense, then unless this Court simply changes the double jeopardy rule with respect to same offenses, the implication surely is that the defendant cannot be proceeded against under the quote, lesser offense of attempted murder.

Unknown Speaker: Mr. Bryson, the Government in its brief, I think, one of it's arguments is that contempts have traditionally been regarded as separate from the substantive offenses, and you cite a number of cases.

Are you going to leave that argument to your brief, or are you going to discuss it during your oral argument?

Mr. Bryson: I was going to discuss it briefly.

I think it is important to lay the historical background for this rule and to note how well-founded this rule is in both this Court's cases and in the common law, and I will just say that the Debs case and in particular the Chapman case from this Court makes quite clear that this Court regards... at least up until Grady v. Corbin has always regarded contempt and the substantive offense as being separate offenses, and that's consistent with the common law approach to the problem.

It's quite clear under common law the contempt was regarded as a separate offense from substantive crimes that were based on the same conduct, and that has been the position of every court of appeals and every State supreme court up until Grady v. Corbin.

This is a well... established principle of double jeopardy law.

Unknown Speaker: But have there been any cases from this Court between Debs and Chapman and Grady that support that?

Mr. Bryson: No, Your Honor.

Unknown Speaker: There was a gap of what, 100 years, is it, or 90 years?

Mr. Bryson: Well, no, I think that Chapman was the earlier part of this century, but it's certainly been 50-plus years, that's right.

The issue did not come up.

I think there is a reason that the issue did not come up, which was because as all of the lower court cases were saying, were accepting the proposition that this was settled law.

It became unsettled only because of Grady v. Corbin.

Unknown Speaker: But it is clear that the law of contempt has changed rather dramatically since 1897.

Mr. Bryson: The procedural--

Unknown Speaker: That's exactly right.

Mr. Bryson: --Part of the law of contempt, that's right.

Unknown Speaker: Requiring jury trial and so forth, yes.

Mr. Bryson: But not the substantive law of contempt, Your Honor.

It always was understood contempt had the same elements that it does now, and it was a crime.

There's no question that it's always been... criminal contempt has always been regarded as a crime, so the substantive status of contempt was always the same.

It has... additional procedures have attached to contempt such as jury trial, but the substance of the offense has been the same, and therefore presumably the analysis of whether it's the same offense as a substantive crime would have stayed the same.

Now, the Court in Grady changed all this, at least as perceived by the lower courts, with the formulation that the Court adopted in Grady, which was the formulation that this Court talked about in Felix, that to establish an essential element of an offense charged in the second prosecution, the State will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Now, read broadly, that formula we concede would appear to cover this case, but that is an extremely broad formulation which has proved very difficult to apply.

We have urged the Court and do continue to urge the Court either to limit that formulation by limiting Grady to its context, or overruling Grady.

Now, the Court has already done the first in Felix.

What the Court has said is that the formulation in Grady cannot be applied broadly, cannot be applied outside of the context of Grady, that... the Court said that taken out of context and read literally the language from the formulation supports the defense of double jeopardy, but we decline to read the language so expansively because of the context in which Grady arose and because of difficulties that have already arisen in its interpretation.

The context of Grady was a lesser-included offense context, or, as the Court expressed it, if not technically a lesser-included offense, at least a species of lesser-included offense.

In Grady and in Vitale before it, the reckless driving by or traffic infractions that were the first prosecuted provided a basis on which you could infer at least either the establishment of recklessness, the element of the greater offense, or at least go a long way to establishing that.

As we've argued here, it's very different in contempt, because without knowing a fact of the case, the fact of what's in the court order, the violation... a violation such as assault with intent to kill or drug trafficking does not tend to establish any element of contempt.

I would like to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Bryson.

Mr. Klein, we'll hear from you.

Argument of James W. Klein

Mr. Klein: Mr. Chief Justice and may it please the Court:

The United States wants to prosecute Mr. Dixon and Mr. Foster for breaking the law after they have already been prosecuted for breaking these same laws in violation of court orders.

I have three points to cover with respect to the application of the double jeopardy clause in these circumstances.

First, if we could set aside just for a moment the special features of contempt, I think it would be clear that further prosecution here violates the double jeopardy clause under pre-Grady principles, and we think that the controlling principles are those in Harris and actually with respect to Dixon the principles of Brown v. Ohio.

As a matter of law, the offenses now being prosecuted were component offenses or elements of the offenses that were prosecuted first, so we don't think the Court needs to talk about conduct at all.

We think a facial examination of the applicable laws takes this Court to the principles of Harris or Brown.

My second point would be that there should be no change in the Court's general rule that a comprehensive offense and a component offense are the same offense for double jeopardy purposes simply--

Mr. Klein: --Well, I think, actually, with respect to Dixon, where the court's order was... I'm sorry, with respect to Foster, where the order was do not commit an assault and do not commit a threat as defined by the District of Columbia Criminal Code, that yes, these are like... these meet Brown and therefore Blockburger.

They are tradition, included offenses.

With... I'm sorry.

Unknown Speaker: Well, when I say, meet the Blockburger test, I mean that each contains an element that the other doesn't.

Mr. Klein: Well, I do... I think that they fail the Blockburger... I always get confused which is meeting and which is--

Unknown Speaker: Well, it is an ambiguous question, at which side of the fence you're looking at at trial.

Mr. Klein: --That's right.

I think that one of these cases, Foster, could be decided under the principles of Brown, that the crimes now being prosecuted constitute elements of the crimes previously prosecuted, and in Dixon, where the Court's order was, it is a crime to commit any crime, that that is comparable to the relationship of the two laws in Harris v. Oklahoma which was the felony murder statute.

And I think that the comparison... and this is really very important, and I think this is why Grady really isn't needed to decide the relationship in this case, is that we can make that comparison between the definition of the offenses being prosecuted simply by a facial examination of the laws, one a judge-made law, of course, that being the contempt, and the other a statutory law, but we don't have to ask about conduct or what the prosecutor's theory of the case was.

Unknown Speaker: Well, does your position mean that any time a criminal defendant having been convicted and let's say placed on probation on typical terms, which is that you be law-abiding, and then the probationer is brought in back to the sentencing court because of committing some criminal offense, not remaining law-abiding, and so the probation is revoked.

Now, would you say double jeopardy prevents any subsequent prosecution there as well?

Mr. Klein: --The standard procedure there would be to utilize could be to revoke the probation and to put the person incarcerate the person.

That would not be--

Unknown Speaker: But the probation would be revoked by proving the commission of the offense, so you're right back where you are in this situation.

Mr. Klein: --The difference, Your Honor, is that the revocation of probation is not a criminal proceeding the way a prosecution for criminal contempt is.

Unknown Speaker: Well, why is Foster's prosecution treated that way?

The U.S. Attorney wasn't involved in that.

Mrs. Foster came in and prosecuted that.

Mr. Klein: Because this Court has said repeatedly in Young v.... excuse me, in the Providence Journal case, and in the Young case, that a criminal contempt prosecution, regardless of who actually handles the prosecution, is a criminal prosecution on behalf of the sovereign.

And in fact we think that... and that was said twice, and in fact that goes back to Gompers, 50 or 60 years before, that a criminal contempt prosecution is between the public and the defendant and it is not part of the underlying civil proceeding, which is what there was in Foster, and that it is a... that the criminal contempt is a crime in the ordinary sense, regardless of who prosecutes it, and we think that the answer, Your Honor, to--

Unknown Speaker: Well, I wonder if that's accurate in the context in which these things arise.

Mrs. Foster went to court in connection with a domestic proceeding to get some protection.

Why should the subsequent contempt proceeding be treated like a criminal prosecution?

Mr. Klein: --Well, no one has doubted in this litigation to this point, and I didn't hear the Government doubt it this morning, that that was in fact a criminal prosecution, a criminal contempt prosecution.

The judge at Mr. Foster's trial said it was a criminal prosecution.

He said that the Government... excuse me, he said that the attorney there, who was representing the Government, would have to prove the contempt beyond a reasonable doubt, and the sentence that was imposed was a determinate sentence, which is as I read this Court's jurisprudence always of tremendous importance in deciding whether the proceeding is remedial and civil or punitive and... not punitive, but criminal, because the sentence is to punish for the affront to the court's dignity.

And I think that that's really the critical point here, which is that the sole purpose of the criminal contempt is to vindicate the authority of the court and not to protect private litigants, and... for the litigants, including victims, have other recourse.

Unknown Speaker: Mr. Klein, accepting that point, is there... do you agree that there is a distinction between the Dixon and the... what is it, the--

--Foster.

I can't read... Foster cases in the sense that in the Dixon case the authority of the court in this case to grant pretrial release could have been vindicated by revoking the pretrial release for the commission of the crime, whereas in Foster there doesn't seem to be any practical way... the domestic relations case, there doesn't seem to be any practical way that the court could enforce its order except by means of some kind of a criminal contempt sentence.

A civil contempt proceeding, for example, I suppose simply would not have been efficacious.

Mr. Klein: I assume that's true.

I think that distinction obviously exists, but I don't think that it's a distinction that has any bearing on the double jeopardy question in this case, because in each of these cases, and as the cases come before the Court now, there was a criminal prosecution.

For whatever reason, the courts decided to go ahead with contempt.

Those judgments are... they're final, they're presumably legitimate, and both Dixon and Foster have stood trial and faced the Government on--

Unknown Speaker: Oh, indeed they did, I don't dispute that.

I mean, the point of my question was, I guess, that to the extent that there is going to be any necessity analysis, that would be a predicate for different results in the two cases.

Mr. Klein: --Well, I think that one might be able to say that if we were back at the earlier stage and asking the question whether the court should go ahead and punish for contempt, there would arguably be greater necessity in the one in Foster than in the other, but in terms of whether Foster and Dixon have a right to claim double jeopardy at this point, I think that the cases are entirely the same.

Unknown Speaker: Mr. Klein, what you say makes sense to me but for the long tradition of the country.

How do you explain that tradition?

What... I mean, it's just a novel proposition, that you can't do what was done here.

Mr. Klein: Well, I think I would lose this case a hundred years ago.

I obviously don't think I should lose it today.

Ever since the Court decided Debs, it has been asking itself why should the interest that underlies the contempt power produce different results?

What does that amount to?

Unknown Speaker: Debs is the watershed, you think.

Mr. Klein: I think that Debs is the watershed.

It's not been straight downhill.

It's a bit like hiking where you come down, and then unfortunately you have to go back up more than you like.

It has been a struggle, but the path from Debs to Bloom is unmistakable.

It is the course of this Court repeatedly asking that question and increasingly coming to the conclusion that contempt should be treated as a crime in the ordinary sense, and I think that there are two principles underlying that statement.

That is not a slogan.

It's anything but a slogan.

It is a hard-won principle that I think reflects first the Court's sense that, unless the contempt power is tightly tethered to the Bill of Rights, it is inconceivable that the exercise of that power can be restricted to the least power necessary.

And there is a second component, and the second component is the Court's recognition... I think that Bloom is the crowning point here... is the Court's recognition that in terms of the impact of a contempt prosecution on the individual, in terms of the effect on individual liberty of the sort that the Bill of Rights is directed to, that contempt is in many ways indistinguishable, and I think that's especially true here.

Unknown Speaker: Well, I think you're right that contempt was considered something quite separate from criminal prosecution originally and that it's changed with Debs, but the question is, shall it be considered the same as a criminal prosecution for all purposes?

We faced that question a few years ago and decided, for example, that the court can appoint its own prosecutor for contempt, thus raising the problem that the Government poses in this case... the prosecutor doesn't even have to know that a contempt proceeding is going on.

So we are inevitably confronted with the question, having decided that contrary to what the common law tradition had been we're going to treat contempt as a criminal matter, are we going to treat is a criminal matter for all purposes?

Now, we certainly haven't treated it as a criminal matter for purposes of whether the court can appoint the prosecutor.

Mr. Klein: I agree, but I--

Unknown Speaker: Why not make an exception for double jeopardy as well, or else maybe--

Mr. Klein: --Because the rule that I think underlies Bloom, and which is really the result of the history, is that contempt will be treated as a crime in the ordinary sense unless there's a compelling necessity to carve out a special rule for contempt, and there is no necessity, and this Court's decision in Young, Your Honor--

Unknown Speaker: --The necessity is that the Court can be imposing a slap on the wrist for contempt and depriving the prosecutor of the ability on behalf of the people to put the person away for a much longer term.

Mr. Klein: --I disagree.

I think that the Government greatly misreads Young and the import of the decision in Young.

Young puts the prosecutor in the driver's seat.

Young says, at least in the Federal courts... and any other jurisdiction now has a model that it could follow... Young says these prosecutions must be referred in the first instance to the public prosecutor, and then the prosecutor can control the timing of when the contempt prosecution is brought.

The prosecutor should do what prosecutors normally do before they bring a case.

They should see what other offenses would be jeopardy-barred if not brought at the same time.

Unknown Speaker: But I mean, what happens sometimes is the court wants to vindicate its dignity and the prosecutor says, I'm not as interested in vindicating your dignity as I am in putting this person away.

I do not want to prosecute for the contempt.

If there's going to be this double jeopardy consequence, I choose not to.

What does the court do then?

Mr. Klein: The prosecutor has a choice.

If the prosecutor is concerned about the double jeopardy implications, the prosecutor simply says, yes, I will accept responsibility for the contempt prosecution and I'm going to bring it, judge, when I'm ready to bring the prosecution on the substantive charge and the Government elects not to bring the contempt prosecution, that's not the Government being preempted, that's the Government making a decision to share prosecutorial power.

Unknown Speaker: So you have to bring together the contempt prosecution and the substantive criminal offense prosecution.

Mr. Klein: Yes, Your Honor.

Yes.

Unknown Speaker: Well, that's a novel doctrine.

Mr. Klein: Well, it's not--

Unknown Speaker: It's totally novel.

Mr. Klein: --Well, it's novel in the sense that the Court has not--

Unknown Speaker: I never heard of it being done.

Have you ever heard of it being done?

Mr. Klein: --Yes, and we cite at least one case--

Unknown Speaker: One case.

Mr. Klein: --We cite at least one case where the Government brought an indictment charging criminal contempt and there's no problem with adding a count in an information or an indictment alleging contempt.

Unknown Speaker: And there could be two punishments if Blockburger is met.

Mr. Klein: Absolutely, Your Honor.

I mean, I think it's very important that I make clear, we are not challenging the power of the court to impose separate punishments in these cases.

Unknown Speaker: But if under the holding of the court below, I suppose, if the criminal prosecution occurred first, then the court couldn't subsequently bring a contempt proceeding.

Mr. Klein: If the court allowed the--

Unknown Speaker: It would work both ways--

Mr. Klein: --Yes.

Unknown Speaker: --The double jeopardy.

Mr. Klein: Yes, it would work both ways.

Unknown Speaker: So only if the prosecution were brought by the prosecutor simultaneously, the two, could there be any possibility of both goals being achieved.

Mr. Klein: That's right.

There has to be a cooperative venture, but I think, Your Honor--

Unknown Speaker: That certainly is a surprising development in the law, wouldn't you say?

Mr. Klein: --Well, I don't think it's a surprising development if the Court is prepared to say, as I think the Court's jurisprudence is leading it to say, that contempt is a crime in the ordinary sense for these purposes and that these cases... that one is simply a component part of the other.

Unknown Speaker: Well, Bloom was decided, what, 25 years ago.

I mean, it's not as if it were decided last year.

One would have expected to see a rash of these double prosecutions that you refer, if that's now required.

But you say you have one case.

Mr. Klein: The question was... no, no.

The question was just, is it possible, and is there any support for the authority... excuse me, any support for the proposition that a contempt prosecution can be brought at the same time as another offense, and my answer is yes, that there's nothing unusual about it.

What's the hardship?

Unknown Speaker: Well, you're talking... you say you only have one example of it being done.

Mr. Klein: Well, it's... well, I... that's right, but that's because no one has contested it as a possibility.

I mean, the Government--

Unknown Speaker: Well, maybe no one has contested the double jeopardy aspect of the thing.

Mr. Klein: --Well, this doesn't arise very much, Your Honor.

These cases are really sort of oddball cases.

The whole issue has arisen only twice that we know of in Federal court in the last 65 years, and both times the courts came out in our favor.

So there is apparently no Federal practice, no entrenched practice of having two prosecutions, because the only district courts that have looked at it in 65 years have said, you can't do that.

Because isn't the point... leaving aside the rhetoric of the court's dignity, and so on, isn't the point of a court that is administering a domestic relations case load, as the Foster court was, that it's got to be able to vindicate itself in a hurry if it's going to have any effectiveness in enforcing its orders at all?

So that in Foster's case, if in fact the assault had been committed, and if we assume, as I think we do commonly assume, that there's got to be some kind of a criminal rather than civil contempt remedy, it wouldn't have been any answer to the concern of the court... the legitimate concern of the court for the prosecutor to say, well, I'll bring in information and we'll put this down on the trial calendar and I will include a contempt count as well as a substantive assault count.

I don't know how many weeks or months would go by in the District of Columbia, but the fact is, if that were the procedure the trial court would be left with no immediate means to... in effect to vindicate its order and no immediate means to have an effective order.

Isn't that fair to say?

Mr. Klein: That's true.

The court could not achieve immediacy, but I think this Court has already come to the conclusion that if a contempt does not occur in the courtroom, then immediacy is not an essential part of the court's ability--

Unknown Speaker: Well, isn't the consequence, though, of applying that kind of a rationale in this situation that the possibility of enforcing these kinds of domestic relations injunctions is pretty well foregone?

Because you can't... I mean, as a practical matter you can't enforce them unless you can... unless you have some credible interrorum mechanism, and the truth is that a prosecution weeks or months later is far less effective than a criminal contempt trial which can be begun on pretty short notice.

Unknown Speaker: Yes, but we've got a separate... I mean, as the other side has said, there is a separate interest here.

We're trying to run the courts effectively, and that seems to me a separate and legitimate interest in addition to the general public interest in the enforcement of crime.

Mr. Klein: --Right, and I think, Your Honor, that the courts should in these instances put pressure on the Government to bring any substantive criminal prosecution swiftly, and the question is, does the court's interest have to be vindicated so much more quickly than the general public interest?

Unknown Speaker: Well, it's not so much the court's interest.

The fact is, the only way to make these orders effective in order to vindicate the interests of the people who are getting beaten up is in fact to have some very rapid procedure for retribution if they are violated.

That isn't just the court's interest, that is the interest of the victims.

Mr. Klein: Well, I think that's putting a lot of weight on the purpose of criminal contempt, and I think that--

Unknown Speaker: Well, how else are you going to enforce these orders?

But the victims of domestic violence can be protected through many other mechanisms that don't require the court either to recast and expand the purposes of criminal contempt or require the bending of the double jeopardy rules.

Number 1, the prosecutors should make domestic violence a priority.

Unknown Speaker: I guess somebody who's subjected to domestic violence who is not fortunate enough to be engaged in the process of a lawsuit at the time has to wait for the wheels of the normal criminal process to grind away, right?

Mr. Klein: They do, and the question, Your Honor, is why do they--

Unknown Speaker: And we consider it okay in that context.

Mr. Klein: --That's true, but I want to make the point that--

Unknown Speaker: I'm trying to help you, Mr. Klein.

[Laughter]

Mr. Klein: --I understand, Your Honor, and that was my point about a homicide.

When someone is charged with a homicide, the public is threatened during the pendency of the trial and the Government can't come in and quickly prosecute the person for the underlying assault--

Unknown Speaker: I suppose the judge could immediately haul the assaultive spouse before the court and charge him with criminal contempt and hold him without bail.

Mr. Klein: --That's right, your Honor.

I think in fact... it may sound surprising, coming from a public defender... that preventive detention has to be an answer in these cases.

It is the traditional... somewhat traditional noncriminal means of preventing future harm during the pendency of a trial, and I--

Unknown Speaker: So you agree that preventive detention would work in the example that I was giving.

Mr. Klein: --Yes, Your Honor, and I think in fact preventive detention is actually particularly appropriate when you're talking about a class of people who have already broken a court order.

Unknown Speaker: But you referred to it as a noncriminal sanction.

Certainly a pretrial... I take it you're referring to a pretrial detention.

Mr. Klein: Yes, Your Honor.

Unknown Speaker: Pretrial detention isn't available except as an incident to a criminal... a serious criminal prosecution, is it?

Mr. Klein: That's right, and serious criminal contempt, and not only that, Your Honor, but many jurisdictions are making it a crime to violate a domestic violence order.

I think we put in our brief, some 38 States have done that, and that is a serious crime.

The other part of the answer I was trying to... I was giving Justice Souter was that the Government should speed up the prosecution of domestic violence.

In the Dixon case, which was a drug case, they returned an indictment in 6 days, and in the Foster case--

Unknown Speaker: For litigants, however, right?

Mr. Klein: --But in--

Unknown Speaker: It's a very small part of the whole problem, if that is a major problem.

You're really just talking about vindication of the court.

That's the only thing that's special.

Outside of that, you have people who are being subjected to violence.

It's just as bad whether you're engaged in litigation at the time or whether you're not engaged in litigation at the time.

If it takes 2 years to prosecute it, that's terrible for both categories of people, isn't it?

Mr. Klein: --I agree, Your Honor.

Unknown Speaker: So the only distinctive characteristic is the dignity of the court somehow.

Mr. Klein: I agree, the question referred to that as the rhetoric of the court's decision, and if there was a concern there, I wanted to deal with it.

Justice O'Connor, I think you were given some inadvertently slightly wrong information in response to one of your questions.

In the Dixon case, the prosecutor moved to modify Dixon's pretrial release, and he cited in his motion the indictment, and he came before the court and they started the proceeding.

At some point the judge said, I don't think that I would have a basis to modify his bail if my concern is flight, and then the judge said to the prosecutor... and this is critical to the facts... are you seeking preventive detention, and the relevant provision is in our brief.

It's D.C. Code Section 23-1329(c).

That would have allowed for the preventive detention of Dixon on the showing that he had violated a condition of his release.

There would have been a lesser showing than was needed to prove the contempt.

One was clear and convincing evidence of the violation.

The prosecutor said, no, I don't want to seek preventive detention, and it was--

Unknown Speaker: How long can preventive detention last under the D.C. Code, and what are the grounds for it?

Mr. Klein: --I think under the provision we're talking about... I could be wrong.

I don't think that there's a time limit with respect to this particular preventive detention component.

Unknown Speaker: That's unusual, because at least in Federal law it's been very much circumscribed.

Mr. Klein: But Your Honor, there wouldn't have been a problem here anyway, because the Government already had the indictment in hand, so in terms of joining everything together, the prosecutor could simply have said, Your Honor, I don't know that I want to go ahead with a criminal contempt prosecution, but if that's what we're going to do, let's proceed on the indictment, and they could have done it all together.

I agree that Foster looks somewhat different.

If there's going to be a system, if the States are going to have a system of private prosecution, then it's going to be harder for them to comply with the double jeopardy clause.

But this Court set up a system in Young.

This Court said, the cases should be referred to the public prosecutor, and then in Young, what we have was a full-scale policy decision by the United States Attorney's Office for the District of Columbia not to treat contempts arising out of civil protection order violations as if they were criminal, and this Court said in Young, they're not part of the civil proceeding, they are criminal.

If the U.S. Attorney or any prosecutor is going to squander the power that Young says the prosecutor should have, then I don't think it's legitimate for the prosecutor to be able to come back later and say that we were preempted.

That's just bad prosecutorial policy, and that's what happened in both of these cases, and that's why these cases I think are something of an oddball.

These were not cases of the court's insisting on vindicating its authority right now.

The record in Foster in particular shows the judge saying, can you reach a settlement, have you talked to the U.S. Attorney's Office about it?

I don't really care about any of that.

So we didn't have the court's viewing the vindication of their authority as requiring immediate action.

I think that when we pull back from this case for a moment the Government is saying, it's easy, just treat contempt as different, but I think the Government is asking the Court to do something quite extraordinary.

Unknown Speaker: Mr. Bryson was correct.

He missed it by just one section.

It's 3148 of the Bail Reform Act.

It does provide for criminal contempt as one of the sanctions for violating a bail order, which it seems to me gives some added focus to the discussion that we've been having.

Mr. Klein: Just... that's true.

There's always been, at least in the past couple of Federal statutes, a provision for contempt, and there is no tradition... I'm fairly certain of this, Justice Kennedy... no tradition at all of using contempt to violate for new crimes committed while on release.

In fact--

Unknown Speaker: Thank you, Mr. Klein.

Mr. Klein: --Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Bryson, you have 4 minutes remaining.

Rebuttal of William C. Bryson

Mr. Bryson: Very briefly, first, with respect to the Young case, I think it's important to remember that Young was a supervisory power case that applied only to the Federal courts.

This problem that we're talking about, particularly the Foster case, which I think is the more widespread problem that this legal issue touches on, is essentially a State law question.

It is no accident that this arises from the local courts in the District of Columbia.

This has been a problem that has come up in the local State courts much more frequently than it has in the Federal courts, and in those courts something like 41 different States have adopted a contempt provision as a means of enforcing civil protection orders.

It is a very important part of the procedures, and it isn't something that can easily be rolled into the criminal prosecution process.

The individuals who are subject to these civil protection orders have already shown themselves not to be some people that are moved by the existence of general criminal liability for assault, and so forth, because when a civil protection order is obtained, it's generally on a showing that there has been an assault, or at least very clear threats of assault already.

They also are not moved, even after the civil protection order, by the fact that there is a civil protection order, because they have violated it, so they need to have some very specific and strong remedy.

That's what contempt is for, and that's why it is so important to not water down the effect of contempt in this setting, and I would add one other point.

Unknown Speaker: Mr. Bryson, may I just interrupt you for a minute?

What do you say to the suggestion that criminal contempt can be charged, preventive detention can be imposed in the Foster situation, and prosecution can take place subsequently in the normal course, so that as a practical matter you get the offender away from the victim?

Mr. Bryson: Well, contempt can clearly be charged, but in many States preventive detention is not available for offenses such as simple assault, and in fact I don't believe--

Unknown Speaker: If that is so, isn't that the problem of the State, not the problem of the double jeopardy clause?

Mr. Bryson: --Well, I'm not sure the solution to the current problem is to get around the problem by creating the capacity for preventive detention for minor offenses and then using it for long periods of time, such as 6 months.

I think that's really using preventive detention to serve a purpose to get around the problem, that you really are holding him in contempt but you're calling it preventive detention and thereby avoiding the double jeopardy clause.

I don't think that's really a satisfactory result, jurisprudentially.

Unknown Speaker: Yes, but to the extent that you're concerned that you need to make the contempt proceedings officially serious, is there any limit on the court's power to impose the same punishment they would impose they would impose in a criminal prosecution?

Mr. Bryson: If the court has a statute, a general contempt statute that has no limit on the amount of time that can be made the sentence, that's right, there would be no restriction.

But typically in these situations, that's not the case, and here the statute under which the proceeding was brought, the contempt statute in this particular case, had a limit of only 6 months to it... at least, the proceeding under the Intrafamily Act.

Unknown Speaker: Yes, but there can be more than one 6 months consecutively, can't it be?

Mr. Bryson: For various acts, that's right.

Unknown Speaker: Yes.

Yes.

Mr. Bryson: And to be sure, to acknowledge the point made by respondents, there is a separate contempt statute in the District of Columbia that could conceivably have been invoked but was not in this case.